Brown v. Weissberg

• Decision Date: 17 December 1964
• Parties: Aethel BROWN, Plaintiff-Respondent, v. Herbert R. WEISSBERG, General Partner, d/b/a Hotel Gramercy Park Co., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 628

254 N.Y.S.2d 628

22 A.D.2d 282

Aethel BROWN, Plaintiff-Respondent, v. Herbert R. WEISSBERG, General Partner, d/b/a Hotel Gramercy

Park Co., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 17, 1964.

Benjamin Glass, New York City, of counsel (Barry A. Tessler, New York City, on the brief) attorney for plaintiff-respondent.

I. Sidney Worthman, New York City, of counsel (Tropp & Steinbock, New York City, attorneys) for defendant-appellant.

Before BOTEIN, P. J., and BREITEL, VALENTE, STEVENS and EAGER, JJ.

BREITEL, Justice.

Defendant, in a personal injury negligence action, appeals from an order denying his motion to dismiss the action for failure to prosecute on the ground that 'plaintiff has failed to place this action upon the calendar of the Court for trial by serving and filing a note of issue.'

The order should be affirmed.

The accident occurred February 3, 1960. A prior action was brought against a wrong defendant and was terminated. The present action was begun July 4, 1962 and issue was joined July 18, 1962. There have been no examinations before trial and a physical examination was arranged only after the present motion to dismiss was made.

Plaintiff sustained a fractured hip when she fell on a stairway landing in defendant's hotel. Her purported affidavit of merits states as the ground for liability:

'The defendant permitted a defective door-stop, and/or safety apparatus to be, and to remain, in a dangerous and defective condition, and permitted thereby a hazard and menace by their failure to maintain same in good working order, and to correct such dangers condition.'

The instant motion to dismiss was made July 7, 1964, but it was adjourned until a final submission after September 1, 1964. This appears from the September 1, 1964 verification of defendant's reply affidavit. In the meantime, on August 18, 1964 a note of issue to place the action on the trial calendar and certificate of readiness were served and filed. The order denying the motion to dismiss was entered September 11, 1964 and this appeal did not come on this Court's calendar for submission until December 8, 1964.

Uncontradicted by defendant are plaintiff's assertions that from August 1963 until May 1964 there were negotiations and adjournments with respect to examinations before trial of the parties, some of which adjournments were obtained by defendant.

Plaintiff's affidavit of merits is utterly vacuous of evidentiary facts and is therefore hopelessly insufficient (Sortino v. Fisher, 20 A.D.2d 25, 31-32, 245 N.Y.S.2d 186, 194-195). But, in order for plaintiff to be required to supply an affidavit of merits defendant must first show delay (id.). In measuring delay one looks to the last stir of activity (id., at 28-29, 245 N.Y.S.2d at 190-192). In this case, there was activity up to two months before the motion was made and defendant fails to contradict his own affirmative participation in producing the delay. Defendant's contribution to the delay is relevant, when it amounts to more than inaction (id. at 31, 245 N.Y.S.2d at 194; cf. id., at 30, 245 N.Y.S.2d at 193). In this case, less than two months prior to the making of the motion to dismiss, defendant by his affirmative conduct contributed to the delay in the action. Consequently, defendant failed to show delay sufficient to require plaintiff to serve an affidavit of merits.

There is another fatal defect in defendant's procedure. In this case, unlike the situation in Mulinos v. Coliseum Constr. Corp., 22 A.D.2d 163, 254 N.Y.S.2d 282, decided December 8, 1964), the motion to dismiss was made not on the ground of general delay but was confined to plaintiff's failure to serve and file a note of issue. CPLR Rule 3216, as amended by chapter 974 of the laws of 1964 provides:

'Nor shall such a motion [to dismiss for failure to serve and file a note of issue] be made or granted unless the defendant shall have served a written demand requiring the plaintiff to serve and file such a note of issue * * *.' ¹

No longer therefore may a defendant seek dismissal of an action solely on the ground of a failure to serve and file a note of issue, without first complying with the statutory preconditions. This is the only ground on which defendant in this case moved to dismiss. Quite different, of course, is the situation where, despite the service and filing of a note of issue, or even if none has been served or filed, there has been gross general delay, a motion made on the ground of general delay, an absence of any showing of merit, and defendant has not contributed affirmatively to the delay (Mulinos v. Coliseum Constr. Corp., supra; cf. generally, Sortino v. Fisher, supra; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. pp3216.01-3216.15, incl. 1964 supplement, at . p. 11). Thus, in the Weinstein treatise it has been said:

'The restriction which this amendment places upon the motion to dismiss for want of prosecution was occasioned in part by the decision in Sortino v. Fisher (20 A.D.2d 25 [245 N.Y.S.2d 186]) where dismissal of a complaint was upheld on the grounds of lack of prosecution and the court indicated that it would reject an excuse that failure to proceed was occasioned by inadvertence on the part of busy and overburdened counsel. It has been pointed out by commentators, however, that this amendment does not abrogate the rule of the Sortino case even though it restricts the dismissal motion by way of time provisions and notice provisions.' (1964 Supp., p. 11.)

(See also the extended excellent discussion in Supplementary Practice Commentary by Prof. David D. Siegel appended to McKinney's Cons. Laws of N. Y., 7B CPLR Rule 3216 [pocket pt. 1964].)

In the Mulinos case, supra, defendant did not move on the narrow ground...